1990 PLP 25 (SCMR)

Date of hearing: 25th April, 1989. SAAD SAOOD JAN, J.‑‑The property in dispute in this appeal bears No.G‑90‑350 and is situate on Phulali Road, Hyderabad City. It was treated as evacuee property and was allotted to respondent No.1 in 1948. When the settlement operations started, respondent No.l submitted a C.H. form for its permanent transfer. His request was rejected by the Deputy Settlement Commissioner on the ground that the property belonged to a religious Trust. On 8‑10‑1969 he moved an application before Mr. Muhammad Azhar who was vested with the powers of the Chief Settlement Commissioner, to seek a declaration under section 4(3), Displaced Persons (Compensation and Rehabilitation) Act that the property in dispute was not attached to any trust. Similarly, the District Evacuee Trust Committee, the appellant before us, too, moved an application before the same officer praying for a declaration that the said property was part of a religious trust. Both applications were heard together by Mr. Muhammad Azhar.

2. In support of its application, the appellant based its case solely upon the extracts from the City Survey Record wherein the property in dispute was described as `Dharamsala' and shown to be under the management of three trustees. On his part, respondent No.l relied upon the P.T.Os. issued in respect of certain contiguous properties attached to the same trust which had been remained unchallenged by the appellant. By his judgment, dated 26‑1‑1970 Mr. Muhammad Azhar accepted the application of respondent No.l, granted him the declaration sought by him and rejected the application of the appellant with the following observations:‑‑ "I find from the copies of P.T.Os. filed by the applicant that the adjoining units of this property have been transferred to their respective occupants by the Settlement Department. That there is no evidence on the record to show that the trust has challenged any of these transfers, that a declaration in respect of this property was also not sought for the respondent trust, in spite of the fact that the applicant has not recognised the ownership of the Evacuee Trust Committee, it has been persistently held, that mere entry in the City Survey Record is not sufficient evidence for a declaration under section 4(3) of this Act. Except for Exh. R‑1, there is no other evidence on the record to support Lie contention of the respondent. This is not adequate evidence." From the order of Mr. Muhammad Azhar, the appellant preferred an appeal before the High Court. The High Court dismissed the appeal after holding that in the absence of the trust deed a property could not be declared to be attached to a religious or charitable trust merely on the basis of entries in the extract from the record of rights or City survey record. The appellant has now come in appeal to this Court.

3. Leave to appeal was granted to the appellant to consider the question whether merely upon the production of the extract from the Record of Rights or City Survey where the property in dispute was stated to be Dharamsala and in the absence of the Deed of Trust, the property in question could be declared to be attached to a religious or charitable Trust.

4. As already noticed in support of its case that the property in dispute was attached to a religious and charitable trust, the appellant relied upon an extract from the Property Register Card. In thus extract, in the column relating to owners' name, the following entries occur: "Sobhraj son of Manikrai Dharamsala Trust Property Trustees

1. Ramchand

2. Kishinchand.

3. Chatur Bhaj son of Sobhraj." Now the Properties Register Card was prepared by public officials in the discharge of their official functions. Ordinarily a presumption of correctness would attach to the entries in the said Register. In the face of this record, the onus shifted to respondent No.l to show that the entries therein were incorrect or unreliable. To discharge his burden he produced certain P.T.Os. of adjoining properties which had been transferred to some other persons without any objection by the appellant. It is to be noticed that the P.T.Os. were issued long after Independence when the trustees named in the extract were no longer available in Pakistan to contest the transfers. The P.T.Os. are at best evidence of the inaction of the appellant in not protecting evacuee trusts; they can hardly be regarded as sufficient evidence to rebut the presumption which is attached to the official record which was prepared as far back as 1932.

5. It is difficult to subscribe to the view taken by the High Court that in the absence of the trust deed a property could not be declared to be attached to a religious or charitable trust. It is to be noticed that a document creating a trust under the Hindu Laws does not require registration. In this case, all the trustees were Hindus who left Pakistan at about the time of Independence. The trust deed must have been in their possession. That being so, to demand that the trust deed must be produced before a property can be declared as attached to a religious or charitable trust, is in the circumstances a tall order. On the other hand, there is no reason why the presumption of correctness which attaches to official record, after it remains unrebutted, should not be given effect in deciding the nature of the property.

6. For the reasons stated above, we accept this appeal, set aside the judgments of the High Court and Chief Settlement Commissioner and declare the property to be evacuee trust allotted to a religious and charitable institution. There will be no order' as to costs. A.A./D‑57/S Appeal accepted.